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On appeal from: [2016] EWCA Civ 490

This appeal considered whether disclosure of details of a rape acquittal in an Enhanced Criminal Record Certificate violates the presumption of innocence protected by ECHR, art 6(2). It also considered, regarding ECHR, art 8, whether an appellate court should determine the issue of proportionality for itself; whether disclosure of an acquittal is disproportionate where full details of the evidence at trial are not obtained and the allegations are not established on the balance of probabilities; and whether disclosure of an acquittal in an Enhanced Criminal Record Certificate is in accordance with law when no independent review of the information occurs prior to disclosure.

The Supreme Court unanimously dismissed the appeal. The Court did not accept that, as a matter of domestic law or under art 8, it is necessary or appropriate for those responsible for an Enhanced Criminal Record Certificate to conduct a detailed analysis of the evidence at the trial. Therefore it is not the case that the art 8 interference involved in the disclosure could only be justified if the officers were in a position to form a positive view of likely guilt. The Court held that it should be borne in mind that the information about the charge and acquittal was a matter of public record, and might have come to the potential employer’s knowledge from other sources.

The Court did, however, note in the judgment, that although the limited issues raised by this appeal led to a clear conclusion, the case gives rise to more general concerns about the Enhanced Criminal Record Certificate procedure in similar circumstances. This is because there is no clear guidance as to what weight should be given to an acquittal in different circumstances, and there is a lack of information about how an Enhanced Criminal Record Certificate is likely to be treated by a potential employer in such a case.

For judgment, please download: [2018] UKSC 47
For Court’s Press Summary, please download: Court’s Press Summary
For a non-PDF version of the judgment, please visit: BAILII

To watch the hearing, please visit: Supreme Court Website (21 Nov 2017 morning session) (21 Nov 2017 afternoon session) (23 Apr 2018 morning session)